On April 11, 2018, in
United States v. Cochise Consultancy, No. 5:13-cv-02168, the Eleventh Circuit Court of Appeal ruled on an issue
of firstimpression – whether a qui tam plaintiff is entitled to
the benefit of section 31 U.S.C. Section 3731(b)(2) regardless of whether
the government intervenes in the case. Section 3731(b) provides the statute
of limitations for False Claims Act qui tam cases, setting forth a general
limitations period of 6 years from the date the violation was committed
in subsection (1), and an alternative limitations period and statute of
repose in subsection (2). The latter subsection provides that an action
must be brought within 3 years after the date when facts material to the
right of action are known or reasonably should have been known by the
official of the United States charged with responsibility to act in the
circumstances, but in no event more than 10 years after the date on which
the violation is committed. The district court had dismissed the plaintiff’s
action, concluding that subsection (2) did not apply since the government
had declined to intervene in the case. The Eleventh Circuit disagreed:
“[t]he statutory text reflects that this limitations period applies
to ‘[a] civil action under section 3730,” and nothing in §
3731(b)(2) makes the limitations period unavailable in qui tam actions
under § 3730 simply because the United States decides not to intervene.”
The Court additionally concluded that it is the knowledge of the government
official, not the relator, that triggers the limitations period.

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